Scales of justice

The riot (or insurrection) at the US Capitol on January 6 is not the kind of event you would expect to need advice from an IP Lawyer. 

However, several brands have inadvertently found themselves associated with the Capitol Hill chaos and facing consumer backlash as a result. The scenario has put the maxim “all publicity is good publicity” to the test. 

Marvel’s ‘The Punisher’ logo (an anti-hero vigilante) was adopted and worn by many rioters at the Capitol riot. As a result, some have called on Marvel to retire the character.[1] Before discussing whether any IP strategy might the answer to Marvel’s new headache, there are two key points for consideration.

Firstly, media sources (and the general public) are not always rational in their association of companies or icons with a particular group (whose members have been merely seen wearing a brand). Attempts to make a connection between the two may have another motive. Reviewing reports on The Punisher and rioters’ use of the symbol, criticism appears to stem largely from a few individuals on Twitter - calling on Marvel to retire the character. The reporting may therefore have been devised to drive traffic rather than highlight a real concern. As such, the rights holders should always consider the necessity of legal action, or whether legal action may bring further attention and make the association more tangible.

Secondly, companies should honestly consider whether there is anything inherent in the content of their IP which has promoted or otherwise encouraged the connection. In these cases a real problem might exist, and is likely better addressed by the right holder through their IP rather than  attempting to address the brand’s misappropriation. At the extreme end, this may necessitate retiring, refocusing, or reimagining the IP, as we have seen in Australia with the recent retirement of several brands associated with racist connotations.[2]

Typically, wholesale prevention of unauthorised use of copyright material and/or a trademark is very difficult to achieve. Measures such as cease and desist letters, infringement proceedings, DMCA and similar take-downs, customs seizures and watches can have a meaningful impact to curb the conduct, particularly when the unauthorised is commercial. However, preventing determined individuals from reproducing protected marks or copyrighted works using tools at home, a local workshop, or print centre is extremely difficult.

It would not usually make commercial sense to pursue infringement action against a private individual where their infringement was nominal. However, if the individual was a leader or key organiser for an extremist group, or selling merchandise to fundraise for such a group, pursuing the action in spite of the cost or low-prospect in recovering damages, might still make sense. Being seen to take action could be just as, if not more, valuable than any achievable legal outcome for the right holder.

Right holders should also note that infringement of IP may also provide a good basis to seek the permanent removal of groups from different online platforms, where otherwise, the platform may be reticent to remove a group due to perceived free speech concerns. Some digital platforms are more willing to do so where the basis is repeated IP infringement.

Despite there being no silver bullet for unwanted association, in addition to a right holder’s non-legal options, the legal avenues for limiting, stopping and preventing infringing uses of their IP, can still be strong tools which may assist in preventing, distancing or ending a perceived and unwanted connection.

For more information about protecting your company or brand, please do not hesitate to contact us.


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